Law Times

Law Times • sepTember 11, 2017 Page 17 www.lawtimesnews.com Supreme Court of Canada Aboriginal Law CONSTITUTIONAL ISSUES Treaty rights National Energy Board process not fulfilling Crown duty to conduct deep consultation Majority of residents of hamlet located on Baffin Island were Inuit. Residents relied upon harvest of marine mammals for their food security and their economic, cultural and spiri- tual well-being. Respondents were companies interested in finding oil and gas resources (proponents). Proponents ap- plied to National Energy Board (NEB) for authorization under s. 5(1)(b) of Canada Oil and Gas Operations Act (COGOA) to conduct seismic testing adjacent to area where Inuit have treaty rights to harvest marine mam- mals. After consultation and en- vironmental assessment, NEB concluded that project was not likely to result in significant ad- verse environmental effects and granted authorization. Hamlet, its mayor and trappers' orga- nization (appellants) applied to Federal Court of Appeal for judicial review of NEB's deci- sion to grant authorization. Ap- plication for judicial review was dismissed. Appellants appealed. Appeal allowed. Duty to consult seeks to protect Aboriginal and treaty rights while furthering reconciliation between Indig- enous peoples and Crown. Any decision affecting Aboriginal or treaty rights made on basis of inadequate consultation will not be in compliance with duty to consult, which is constitutional imperative. Where challenged, it should be quashed on judi- cial review. Adequate Crown consultation before project ap- proval is always preferable to judicial remonstration follow- ing adversarial process. No con- sideration was given in NEB's environmental assessment to source, in treaty, of appellants' rights to harvest marine mam- mals, nor to impact of proposed testing on those rights. Process provided by NEB did not fulfill Crown's duty to conduct deep consultation. Limited oppor- tunities for participation and consultation were made avail- able to appellants. No mutual understanding on core issue of potential impact on treaty rights and possible accommodations could possibly have emerged from process. NEB's authoriza- tion was quashed. Clyde River (Hamlet) v. Petroleum Geo-Services Inc. (2017), 2017 CarswellNat 3470, 2017 CarswellNat 3471, 2017 SCC 40, 2017 CSC 40, McLach- lin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2015), 2015 CarswellNat 12196, 2015 CarswellNat 3750, 2015 FCA 179, 2015 CAF 179, M. Nadon J.A., Eleanor R. Dawson J.A., and Richard Boivin J.A. (F.C.A.). Human Rights WHAT CONSTITUTES DISCRIMINATION Substance abuse No discrimination where employee dismissed for failing to disclose addiction contrary to safety policy Complainant had safety-sen- sitive job driving loader in employer's mine. Employer policy (Policy) required em- ployees to disclose addiction issues before any drug-related incident occurred. If employee failed to disclose, was involved in incident, and tested posi- tive for drugs, Policy provided for termination of employ- ment. Complainant's loader was involved in accident. After complainant tested positive for drugs, he told employer he was addicted to cocaine. Complain- ant was dismissed under Policy. Complainant brought human rights complaint alleging em- ployer discriminated against him on basis of addiction dis- ability. Human Rights Tribunal held complainant was not dis- missed because of addiction but for breaching Policy, so there was no prima facie discrimi- nation. Tribunal's decision was affirmed by Court of Queen's Bench and majority of Court of Appeal. Complainant appealed to Supreme Court of Canada. Appeal dismissed. Tribunal's conclusion that there was no prima facie discrimination was reasonable. Tribunal repeatedly stated addiction was not factor in decision to terminate, and rejected argument that denial prevented complainant from disclosing his addiction prior to accident. Finding of stereotypi- cal or arbitrary decisionmak- ing is not stand-alone require- ment for proving prima facie discrimination. There was no need to alter settled view that protected ground need only be factor in decision. Stewart v. Elk Valley Coal Corp. (2017), 2017 Carswel- lAlta 1023, 2017 CarswellAlta 1024, 2017 SCC 30, 2017 CSC 30, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2015), 2015 Carswel- lAlta 1190, 2015 ABCA 225, El- len Picard J.A., Jack Watson J.A., and Brian O'Ferrall J.A. (Alta. C.A.). Federal Court of Appeal Human Rights PRACTICE AND PROCEDURE Commissions, tribunals and boards of inquiry Canadian Human Rights Commission's reliance on investigator's report was reasonable Complainant, member of Ca- nadian Forces (CF), alleged he was discriminated against by CF because he was homosexu- al. Complainant made human rights complaint against CF on grounds he was discriminated against by CF on basis of his sexual orientation. Investiga- tor issued investigation report. Canadian Human Rights Com- mission, relying on report, concluded inquiry was not warranted and dismissed com- plaint. Complainant's applica- tion for judicial review, alleging report contained factual errors was dismissed. Complainant appealed. Appeal dismissed. Complainant's attempt to in- troduce fresh evidence through chain of emails exchanged with Commission's counsel in at- tempt to demonstrate counsel committed perjury by stating he was represented by counsel was rejected. Evidence complain- ant sought to introduce had no bearing on outcome of case, nei- ther as for issue of reasonable- ness of decision nor as for pro- cedural fairness. Complainant did not meet onus to introduce new evidence. Commission's decision was reasonable; inves- tigator was required to conduct thorough and neutral inves- tigation - absolute perfection was not standard. Although investigation report contained factual mistakes, these were not material and they did not lead to fundamentally f lawed conclu- sions. Given that complainant sought to leave CF on his own initiative year prior to end of his mandatory service period, it could reasonably be asserted that CF's decision to release him at expiration of his mandatory service period related not to dis- crimination, but to complain- ant's earlier request to termi- nate his service. Commission's reliance on investigator's report was reasonable. Judge did not err in finding Commission did not violate procedural rights of complainant. Ritchie v. Canada (Attor- ney General) (2017), 2017 Car- swellNat 2424, 2017 FCA 114, A.F. Scott J.A., Yves de Montigny J.A., and J. Woods J.A. (F.C.A.); affirmed (2016), 2016 Carswell- Nat 1866, 2016 CarswellNat 2858, 2016 FC 527, 2016 CF 527, Ann Marie McDonald J. (F.C.). Tax GOODS AND SERVICES TAX Supply Services relating to operation of vacation homes in Canada were taxable supply Registrant CI operated vacation homes in resorts in Canada, US and Mexico as part of vaca- tion home ownership program. Members of registrant paid annual resort fee to registrant. Minister of National Revenue assessed registrant on basis that annual resort fee was subject to GST as consideration for tax- able supply of intangible per- sonal property. Tax Court judge dismissed registrant's appeal and held that registrant was re- quired to pay GST on all of an- nual resort fee paid by members. Judge held that annual resort fee was paid as consideration for CASELAW Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. CASELAW REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. 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